US Army Corps of Engineers BUILDING STRONG®

Alternatives Analysis: Satisfying NEPA, Public Interest Review & 404b1

Chandler Peter Technical Specialist Regulatory Division July 24, 2014

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NEPA, Public Interest & 404b1 Alternatives Integration

Regulatory strives to integrate requirements of all 3 into one analysis

Generally, they match relatively well ► However, NEPA and PI can have broader range of

alternatives (reasonable) than the 404b1s (practicable)

404b1s recognize that NEPA documents prepared for other agencies may need to be revised to address Guideline requirements

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Intensity of Alternatives Analysis NEPA – Adaptability recognized for EA or EIS

► EAs provide brief discussions of need, alternatives and impacts

► Courts hold level of alternatives analysis (both range and intensity) for EA less than for EIS.

PI – Level of controversy drives level of review ► Considers both practicability and reasonability

404b1 - Alternatives analysis is adjustable ► Level of analysis is to be commensurate with the

impacts/scale/cost of the project • See 8/23/93 Joint EPA/USACE memo

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Equal Treatment

Treat all alternatives equivalently ► NEPA require the degree of analysis devoted to each

alternative is to be substantially similar to the proposed action.

► NEPA states is to include alternatives not necessarily desirable from applicant’s perspective

► 404b1s require apples to apples comparison • Critical to appropriately determining Least Environmentally

Damaging Practicable Alternative (LEDPA) • Must demonstrate proposed action is LEDPA •USACE cannot issue permit for anything else

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Types/Range of Alternatives

NEPA & 404b1s require that alternatives analyses include consideration of: ► Proposed action ► Geographic options including changes in location or

alignment • Some actions may be site specific & do not have off site

options ► Site specific alternatives/configurations

• Different layouts • Reduction in size or area to be developed

► No Action alternative Display options on maps/plans

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No Action Alternative

Regulations specify 2 options for Regulatory 1. Formulate option that does not involve regulated

discharge (e.g. avoid on site, use upland off-site location, etc.)

2. Permit denial – what will applicant do If property to stay as is or sold, describe

► Discuss consequences of other likely uses of project site ► Need to not include speculative statement/analysis

Evaluate No Action to extent necessary (variation on equal treatment allowed)

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Screening Criteria 404b1s specify 5 categories to screen alternatives

1. Environmental consequences to waters of the US 2. Project purpose 3. Logistics 4. Costs 5. Technology

NEPA, in general terms, identifies 4 factors 1. Project purpose 2. Common sense 3. Economics 4. Technology

Documentation justifying screening criteria, thresholds, & how applied to options critical

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Waters of the US Impact Screen Typically easiest screen to develop/apply Addresses “Least Environmentally Damaging”

portion of LEDPA ► Comparison of impacts to waters of the US between

alternatives should be shown • Normally based on acreage/linear feet (similar functions)

Can also include indirect, secondary and cumulative impacts • Off site options compared to proposed site

Delineations not required for all sites but methods of comparative assessment must be the same. Use proposed site delineation to validate off site method accuracy

• ID differences in impacts with on-site configurations • Can display in tabular form

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Waters of the US Impact Screen 404b1 Guidelines sequencing requirement

must be followed ► Cannot consider compensatory mitigation actions in

the alternatives analysis for determination of LEDPA (e.g., no buying down of impacts)

► Re-emphasized in 1990 EPA/USACE Mitigation MOA

Avoidance & minimization must be considered and is utilized

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Project Purpose Screen Overall project purpose must be met by any

alternative to be practicable ► Either an alternative satisfies purpose or doesn’t ► Not a “better addresses purpose” determination

Simplified Example – Project purpose is to safely accommodate current & future traffic between town X and city Y. ► Alt. 1 - 2:1 side slopes w/ guardrails – 2 acres impacted ► Alt. 2 - 4:1 side slopes no guardrails – 3 acres impacted ► Both carry traffic & are safe (based on AASHTO standards)

but 1 not as safe as 2 ► USACE can only permit option #1

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Project Purpose Screen Additionally, it’s not whether an alternative

“more fully or better addresses” management plans, goals, desires, political issues (non project purpose aspects) One practicable alternative provides greater social

benefits (with greater aquatic resource impacts) compared to another w/ less aquatic resource impacts & less social or economic benefits, USACE can only approve the lower aquatic resource impact alternative

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Logistics Screen Typically government, other impediments that

eliminate ability to implement an alternative ► Categories usually similar for project types but

applicability is very case specific • Land availability and potential designation(s) • Denial of zoning, access, variance or other development

changes • Timeliness (for some public works actions) • Other

► Factors normally not legitimate as logistics screens • Funding streams • Zoning

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Cost Screen Normally screen of last choice due to amount of

effort to develop, conflict & other factors 404b1s specify costs rather than economics

► Term “economic” eliminated from original 404b1s • Applicant financial standing, market share not germane

Need to establish cost “thresholds” & are to be based on: ► Type of project and applicant ► Costs associated w/ comparable type projects in

area/region

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Technology Screen Typically a cost screen

► Aspects of project/area may require innovative use of technologies that add significant costs (e.g., geotechnical issues at dam site)

Can result in substantial effort to determine if emerging technologies can be applied to project or alternative

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Second Look

404b1s require Corps only approve LEDPA ► Impacts to aquatic resources drive Corps decision

However, can consider whether LEDPA has other significant adverse environmental consequences ► Allows for considering other significant effects and

damage to other ecosystems ► EPA/Corps 8/23/93 guidance furthers that these

“other consequences” are to involve natural environmental values